IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           In this proceeding the Claimant seeks possession of a 3 year old Korean Jindo dog named “Luna”.  In the alternative, she seeks an order sharing Luna on a week on/week off basis.  Failing either of the above (and very tertiary in order of preference) she requests $475 in compensation for her half-share of the $950 she and the Defendant paid to adopt Luna.

[2]           The Defendant seeks to maintain the possession of Luna without any formal order as to the Claimant having visitation rights and acknowledges the financial contribution.

[3]           The Claimant is 25 years old and works as a registered nurse.

[4]           The Defendant is also 25 years old and works as a refrigeration technician.

[5]           The parties started living together in 2014 at the Defendant’s residence and while together they arranged, with the assistance of a mutual friend working in South Korea, to adopt Luna as a rescue dog.  Luna arrived in February of 2015.

[6]           They both shared any expenses for Luna while they were together and more or less were equally involved in looking after her.

[7]           In September of 2015 the parties stopped living together with the Claimant moving to a new apartment that did not permit pets.  In June of 2016 the Claimant obtained permission from her landlady to have pets and contacted the Defendant about sharing possession of Luna.

[8]           That has led to this litigation.  The Claimant says there was an agreement to share Luna when it became possible. 

[9]           The Defendant says he paid $2,500 to the Claimant when she moved out to adjust certain matters between them and he believed ownership of Luna was one of those matters.

[10]        Since September of 2015 the Defendant has had virtually exclusive possession of Luna.  The Claimant did take her for some visits/walks some 5 or 6 times after moving out but has had no contact since some time before June of 2016.

[11]        The legal system fundamentally treats issues as to dog ownership the same as a dispute over personal property. (Henderson v. Henderson 2016 SKQB 282, Danyliuk, J.; Warnica v. Gering, 205 CanLII 30838, ONT, C.A.); Ireland v. Ireland, 2010 SKQB 454).

[12]        Two other cases which are of some relevance to my decision are: MacLean-Beaudet v. Belanger, 2012 CanLII 97365 (ON SCSM) and Rogers v. Rogers (1980) O.J. No. 2229.

[13]        I also have had reference to the decision in Gardiner-Simpson v. Cross 2008 NSSM 78 and quote the following from that decision:

[14]        What I extract from the collective wisdom of these cases and some others is as follows:

[15]        The above being acknowledged it is also clear that in Canada there is a legal requirement that animals (and in particular dogs and cats) be treated “humanely” unlike any inanimate personal possession.

[16]        In personal property law terms if someone owns a pet and brings that pet into a relationship or if someone is gifted or acquires prima facie sole possession of a pet during a relationship then absent exceptional circumstances that pet remains their property when they leave the relationship (see: Thompson v. Thompson, 2005 BCSC 1604 and McIntosh v. Daoust, 2016 MBQB 194).

[17]        In this case, Luna was acquired by the parties not individually by either one but rather as what legally might be characterized as a partnership or joint venture.

[18]        Basic partnership law provides for an equal division of assets on dissolution of the partnership.  Many partners make agreements as to how they will deal with assets if the partnership winds up.  Many, such as here, do not.  Partnership law requires that partners deal with each other fairly and equitably.  One of the maxims of the law of equity is: “Equity presumes that to be done which ought to have been done”.  In the context of this case, and having seen and heard the parties, I can assume that if they had directed their minds at the time they acquired Luna or during their joint care of her to what would happen if they split-up they would have agreed that this decision would take into account the best interests of Luna and her humane treatment.

[19]        One of the descriptions of the Jindo breed and which is consistent with the evidence in this case is as follows:

[20]        Apart from the law that suggests joint use of a dog should not be ordered the evidence in this case suggests that time-sharing of Luna would not be best for her based on either her breed or individual characteristics.  The evidence is clear that Luna has cemented her bond with the Defendant since the separation of the parties and is well-cared for her by him.  I accept that she had an equal bond with the Claimant up until September of 2015.  As Luna has been spayed there is no possibility of sharing one of her pups.

[21]        It is not clear that the parties intended to include Luna in their “property” settlement of $2,500.

[22]        Accordingly, I find that the claim of Ms. Brown for either sole or joint ownership of Luna is unsuccessful.  I do grant the claim for $475 and for costs which I fix at $110.

[23]        The Defendant is to pay the Claimant $585 on or before May 30, 2017.  I do not consider that the matter merits any order for interest.